2016 PLP 1 (YLRN)

Ss. 516-A & 517

Superdari of tractor

Principle

During investigating murder case, investigating officer took into possession a tractor which was owned by petitioner

Validity

Tractor in question was neither used for commission of offence nor for escaping from crime scene and the same was not an instrument for commission of alleged offence

Petitioner was the sole claimant/ owner of the tractor and its seller did not claim its custody and even it was not questioned by anybody else

Purpose of S.516-A, Cr.P.C. read with S.517, Cr.P.C. was to hand over custody of property regarding which any offence had committed, pending conclusion of trial or on its conclusion, in order to save the same from devastation where it was likely to be misused, damaged or its utility was to be diminished

Petitioner as well as previous owner of tractor was neither named in FIR nor required in the case

No rival claimant of the tractor, which could not be said to have been used in the commission of alleged offence

Trial Court did not exercise jurisdiction vested in it and failed to appreciate law on the subject properly

Revision was allowed in circumstances. [Paras. 6, 7 and 9 of the judgment] Muhammad Hanif v. The State 2008 MLD 1416; Haji Rab Nawaz v. The State 1988 PCr.LJ 1353; Manzoor Hussain v. The State 2008 MLD 1491; Humayun Azam v. Ch. Sadiq Inspector/SHO Police Station Kunjah District Gujrat and 3 others 1999 MLD 1676 and Syed Razi Shah v. The State 1971 PCr.LJ 19 ref. Naveed Ahmad Warriach, DDPP. ORDER FARRUKH GULZAR AWAN, J.--Zaheer Abbas petitioner has filed this criminal revision under Sections 435/439 Cr.P.C. against order dated 9.5.2015 passed by the learned Additional Sessions Judge, Attock whereby his application for Spurdari of vehicle/Tractor No.6611-MI in case FIR No.293/2014, under Sections 302/ 324/109/148/149, P.P.C. registered at Police Station Saddar Attock was declined.

2. Learned counsel for the petitioner has contended that the petitioner is sole owner of the tractor in question and there is no other claimant; that the subject tractor is not the case property of case FIR No.293/2014 as no registration number, model or the name of company has been mentioned therein; that in case the custody of subject tractor is not handed over to the petitioner, it value and utility will diminish and the petitioner would suffer irreparable loss, therefore, he is entitled to the Spurdari of subject tractor. Relies on cases titled "Muhammad Hanif v. The State 2008 MLD 1416 [Lahore])" and "Haji Rab Nawaz v. The State 1988 PCr.LJ 1353 [Karachi])".

4. Arguments heard. Record perused.

5. Bare perusal of FIR shows that no number, model, company name, description or owner of the subject tractor has been mentioned therein. This case was registered on 10.10.2014 and the subject tractor was taken into possession by the police on the pointation of one of the accused namely Afsar Ali. The petitioner got the subject tractor transferred in his name on 19.11.2014 from its previous owner namely Hameed Ullah. Neither the petitioner nor Hameed Ullah, previous owner of the subject tractor, is accused in the said FIR. "Vehicle used for the running from the place of occurrence by the accused is not a "case property"

Vehicle used by an offender for going to or running from a place where an offence is committed by him, cannot be said to have been used for the commission of that offence and the same cannot be taken into possession by the Police as case property." "Words "property used for commission of an offence" in S. 517, imply only instruments like guns, swords etc. with which offence was committed. Vehicle used for going to and escaping from place of incident, not covered within "property used for commission of offence". The subject tractor was neither used for the commission of the offence nor for escaping from the crime scene and as such the same cannot at all be said to be an instrument for the commission of alleged offence.

7. The petitioner is the sole claimant/ owner of the subject tractor and its seller admittedly has not claimed its custody and even it was not questioned by anybody else. The purpose of Section 516-A read with Section 517, Cr.P.C. is to hand over proper custody of such property regarding which any offence appears to have been committed, pending the conclusion of trial or on its conclusion, in order to save the same from devastation where it was likely to be misused, damaged or its utility was to be diminished.

8. Learned trial Court has dismissed the claim of petitioner on the presumption that there is apprehension of tampering of prosecution evidence and misappropriation of the subject tractor as the petitioner is grand-son of nominated accused Afsar, therefore, he will not produce the same in the Court. The subject tractor cannot be retained on presumptions and the petitioner could be bound to submit surety bonds in order to safeguard the interest of the prosecution as well. The possession of vehicle is temporarily given to its owner till finalization of the proceedings and the only purpose of putting certain conditions upon Spurdar/owner of the vehicle is to ensure its production if, when and where it is required by the Court and as such the same cannot be said to have been delivered for good and the same is deemed to be under the constructive possession of the Court.

9. The petitioner as well as previous owner of the subject tractor is neither named in the FIR nor required in the said case. There is no rival claimant of the subject tractor, which cannot be said to have been used in the commission of alleged offence. Therefore, I am persuaded to hold that the learned Court below has not properly exercised the jurisdiction vested in it and has failed to appreciate law on the subject properly. In view of above, the revision petition in hand is allowed and the vehicle/tractor No.6611/M.I. is directed to be given to the petitioner on Spurdari subject to his furnishing surety bonds in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of the learned trial Court. The petitioner is bound down to produce the subject tractor in the Court if and when called upon to do so during the proceedings of trial. MH/Z-24/L Revision allowed.